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Department of State Seeks Input on Harmful 2019 Public Charge Rule


Boundless urges the Department to roll back the Trump-era wealth test and reinstate previous guidance

Jan 20, 2022


Department of State building in Washington DC

Boundless Immigration submitted a comment to the U.S. Department of State earlier this week urging the Department to rescind its illegal and harmful October 2019 public charge rule relating to visa ineligibility, as well as the accompanying Foreign Affairs Manual guidance released in January 2018. The comment period closed January 18.

Boundless strongly opposes the 2019 public charge rule and urges its immediate rescission. The rule relies on the same flawed legal reasoning as the Department of Homeland Security’s (DHS) enjoined and since-vacated 2019 public charge rule. Additionally, like the DHS rule it was designed to mimic, the DOS public charge rule has a substantial and indefensible chilling effect on legal immigration to the United States, resulting in needless suffering and separation for families, increased costs and pressures for American businesses, further exacerbated labor shortages, and adding to what are already crisis-level backlogs.

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Additionally, rescinding DOS’s 2019 public charge rule should be followed by reversal of the Department’s still-enjoined January 2018 revisions to the Foreign Affairs Manual (FAM). These revisions were issued without notice or comment, which violates federal law under the Administrative Procedure Act, and should be withdrawn for the same reasons the court found they should be enjoined: the Department “fail[ed] to provide any reasonable justification for changing through the DOS Rule the definition of “public charge” or the framework for determining whether an individual is likely to become a public charge.”

The court also found that there was substantial evidence of the disproportionate impact of the 2018 revisions and 2019 rule on immigrants from countries that are commonly comprised of people of color, finding that the changes likely violated the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution.

Finally, leaving aside the fact that the rule was already stopped by federal courts for all the reasons noted above – along with the DHS rule it is supposed to mirror – it should be rescinded because it has an unnecessary and substantial effect on restricting immigration into the United States at a time when the country desperately needs it. The rule introduces unnecessary and inefficient restrictions into an already overwhelmed and backlogged system, thereby lengthening family separations, impeding American businesses from hiring, and exacerbating the labor shortage during a critical crisis – particularly in the healthcare industry. In fact, several of the industries currently being hit hardest by labor shortages are industries that the public charge rule was also estimated to negatively impact: hospitality and food services, personal and general services, construction, manufacturing, and natural resource and mining industries.

Read the full public comment at Regulations.gov.


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